(1)Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.

(2)The Board shall be named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision on the merits on the underlying personnel action or on a request for attorney fees, in which case the agency responsible for taking the personnel action shall be the respondent.

(b)

(1)

(A)Except as provided in subparagraph (B) and paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

(B)During the 2-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2012, a petition to review a final order or final decision of the Board that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section
2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

(2)Cases of discrimination subject to the provisions of section
7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16(c)),section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), andsection 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section
7702.

(c)In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be—

(1)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2)obtained without procedures required by law, rule, or regulation having been followed; or

(3)unsupported by substantial evidence;

except that in the case of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court.

(d)

(1)Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director may obtain review of any final order or decision of the Board by filing, within 60 days after the Board issues notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in the discretion of the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

(2)During the 2-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2012, this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section
2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D). The Director may obtain review of any final order or decision of the Board by filing, within 60 days after the Board issues notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction if the Director determines, in the discretion of the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the court of appeals.

For the effective date of the Whistleblower Protection Enhancement Act of 2012, referred to in subsecs. (b)(1)(B) and (d)(2), see section 202 ofPub. L. 112–199, set out as an Effective Date of 2012 Amendment note under section
1204 of this title.

Amendments

2012—Subsec. (b)(1). Pub. L. 112–199, § 108(a), added par. (1) and struck out former par. (1) which read as follows: “Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.”

Subsec. (d). Pub. L. 112–199, § 108(b), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing, within 60 days after the date the Director received notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.”

Subsec. (d). Pub. L. 105–311, § 10(a)(2), in first sentence, inserted “, within 60 days after the date the Director received notice of the final order or decision of the Board,” after “filing”.

1989—Subsec. (a)(2). Pub. L. 101–12amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section
7701. In review of a final order or decision issued under section
7701, the agency responsible for taking the action appealed to the Board shall be the named respondent.”

1982—Subsec. (b)(1). Pub. L. 97–164, § 144(1), substituted “United States Court of Appeals for the Federal Circuit” for “Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title
28”.

Subsec. (c). Pub. L. 97–164, § 144(2), substituted “Court of Appeals for the Federal Circuit” for “Court of Claims or a United States court of appeals”.

Subsec. (d). Pub. L. 97–164, § 144(3), substituted “United States Court of Appeals for the Federal Circuit” for “United States Court of Appeals for the District of Columbia”.

Pub. L. 105–311, § 10(b),Oct. 30, 1998, 112 Stat. 2954, provided that: “The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [Oct. 30, 1998], and apply to any suit, action, or other administrative or judicial proceeding pending on such date or commenced on or after such date.”

Amendment by Pub. L. 97–164effective Oct. 1, 1982, see section 402 ofPub. L. 97–164, set out as a note under section
171 of Title
28, Judiciary and Judicial Procedure.

Effective Date

Section effective 90 days after Oct. 13, 1978, see section 907 ofPub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section
1101 of this title.

Savings Provision

For effect of Pub. L. 101–12on orders, rules, and regulations issued before effective date of Pub. L. 101–12, administrative proceedings pending at time provisions of Pub. L. 101–12take effect, and suits and other proceedings as in effect immediately before effective date of Pub. L. 101–12, see section 7 ofPub. L. 101–12set out as a note under section
1201 of this title.